Change of Custody After Child Has Already Been Moved Away?

Dear Esq.,

I went through a divorce about 3 years ago. Though the divorce was fairly painless, parenting issues have become tougher and tougher. I had moved to a different state for my job, and then returned home to where my son lived. His mother and I have joint custody of my son; however she is the residential parent. While I moved, she kept him, and when I returned he resided mainly with his mother.

Since I have returned his mother has moved him out of state. I gave her permission to move to a different state; however I made every effort to work with her on letting my son stay here with me (short of a legal battle).

To make a long story short, my ex has depression problems, and is on medication. She makes a fairly good living, but is required to leave her children in day care while she works. My son didn’t want to move, and has had his struggles with moving there. I know that children take some time to adjust, but he is talking about killing himself (he is only 6 years old). Instead of spending money on a counselor for him, she is spending money to send him to visit his grandparents. She is doing this because she “needs a vacation from her kids”. I have been trying to work this issue out between the two of us, but I am mostly treading water. I am married, I have a larger home where he would have his own space, there is always someone here that would be with him. With her she has a 6 month old child, she is single, and doesn’t spend much time with her kids.

I am debating whether or not I should pursue legal actions to resolve this issue. I hear rumors that fathers do not have rights, and that pursuing this will be a waste of time.

Any suggestions???

Concerned

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Dear Concerned,

Without knowing any of the time, states or distances involved, it is very difficult to really know your situation. However, generally speaking you are right that more often than not in a situation such as you’ve outlined above, you are unlikely to get any satisfaction from the Court.

That said, there are definitely times when you should consider action through the courts, and those would include if your ex sends your son to his grandparents for an extended period of time (i.e. for more than just a typical vacation, as then you may be able to successfully argue that he is no longer living with her, and so should be with you), and where you have solid evidence from a neutral (if not professional) third-party that she is not adequately attending to his emotional problems, and that he is in imminent danger of demonstrable harm as a result.

Otherwise, and even with the cases above, your best bet will always be to try to find a way to get her to agree to his coming to be with you, and making your own arrangements without the intervention of the Court.

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Very frequently in cases such as this the mother may actually realize, deep down, that the children should be with the father, at least for some period of time, but a couple of things keep them from being able to follow through. One is the fear that sending the children to their father for a time will result in her losing the children altogether. You can alleviate this concern by bringing it up yourself – offering, even promising in writing, that you will not attempt to use against her any period of time she allows you to have the children with you while she “takes a break”, or whatever the reason may be.

The other thing which may keep mothers from sending the children to the father for a period of time (or from letting them go to live with the father outright) is the concern over the financial impact – so long as she has custody, you are on the hook for child support. This doesn’t necessarily mean that she is putting money ahead of what is best for your child – it’s a concern which has been drilled into many women, especially as they go through divorce – and if that child support payment is part of what allows her to make ends meet, she may be genuinely scared of losing it. The best way to take the wind of the this particular sail is to offer, right up front, “I realize that finances may be a concern for you, so let me reassure you that if you let him come stay with me,

I’ll continue to pay child-support at the current rate, just as if he were there with you.” You don’t have to keep paying forever – and if the change ends up looking permanent, you can always go back to modify child support at that time. In the meantime, the cost of the ongoing child support even while having your child with you will still cost you less than a court battle would have, and everyone comes out the winner.

It is also critical that during these discussions you don’t say anything which comes across as judgemental of her lifestyle, choices, or parenting, as that is the quickest way to ensure that she will feel she has to defend her position as the primary parent.

Finally, don’t put her in the position of having to choose between you and her parents, as that will only exacerbate things, and cause her parents to push her to not send your son to you. Instead say something like “Hey, that’s a great idea to have him have some time with your folks; after that how about I take him with me for a while so that you can have a break, and he can have some time with me? And hey, I realize that finances may be a concern for you, so I’m willing to continue paying the same amount of child support I’m paying now even while he’s with me.”

If all of this fails, and depending on in what state your case is, you should be able to petition the Court to order that your son receive counselling, particularly given his suicide threats; be sure to provide as much credible, third-party evidence of these threats and other issues as you can. In fact, if you get such an order, and your ex fails to abide by it and get your son into counselling, again depending on what states are involved, that may be grounds for a change in custody.